Monday, March 29, 2010

The United States is fighting a remote control war with al Qaeda in Pakistan’s rugged tribal areas. CIA pilots, sitting at computer terminals in the United States, guide unmanned drones toward what they believe to be al Qaeda training camps or safe houses in an effort to kill leaders of the terrorist group with no risk to life or limb for U.S. personnel. The Obama administration has substantially increased the use of these so-called “unmanned aerial vehicles” and claimed success in taking out high-level al Qaeda leaders and generally disrupting the group’s planning operations. Since the Bush administration began using the tactic, the death toll for civilians reaches into the hundreds, far higher than the dozens of terrorists killed. The collateral damage raises significant questions about the use of the tactic in terms of international law. The law of war requires that attacks be limited to military objective and that civilians not be targeted. In addition, the principle of proportionality prohibits attacks likely to cause civilian deaths or injuries that would be excessive in relation to the direct military advantage anticipated. Under President George W. Bush, international law was hardly a major concern. To its credit, the Obama administration has now taken the time to set forth its rationale for concluding that the United States is conducting this high-tech war in full compliance with the law of war as well as U.S. domestic law. The administration’s defense came in a lengthy speech by Harold Koh, the State Department’s legal adviser, to the American Society of International Law during its annual meeting in Washington on March 25. Koh, the former dean of Yale Law School, came to the meeting as a longtime internationalist. He noted that he has been a member of the society since his days as a law student some 30 years ago. Critics of drone warfare looking for a substantive defense, however, may well feel disappointed. Koh began his discussion of the use of drones by stressing the limits to how much he could say publicly. In the following 12 paragraphs, Koh added nothing by way of concrete information to the public record on the issue. Fittingly, the American Civil Liberties Union responded to the speech by citing its suit filed the week before under the Freedom of Information Act to pry out more details about the program  its costs as well as its benefits. Koh batted away the view that targeting a particular enemy leader violates either international or domestic law. An enemy leader is a belligerent, Koh said, and a lawful target under the law of war. As precedent, he noted that during World War II, U.S. aviators tracked and shot down the plane carrying the Japanese naval leader Isoroku Yamamoto, the commander-in-chief of Japan’s attack on Pearl Harbor. As for domestic law, Koh contended that targeting an enemy leader does not violate the domestic ban on assassinations nor constitute an unlawful extrajudicial killing. Koh also rejected what he said was the view of some critics that the very use of advanced weapons systems for lethal operations runs afoul of international law. There is no such prohibition, Koh said, as long as the high-tech weapons are employed in conformity with the applicable principles of the law of war. Indeed, he added, using such systems can actually help minimize civilian casualties. And he insisted that in the operations against al Qaeda, “great care is taken . . ., in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.” The evidence, however, belies Koh’s assertions. In a detailed assessment published in The New Republic in June, two experts with the liberal-leaning New America Foundation  journalist Peter Bergen and policy analyst Katherine Tiedemann  concluded from media reports that at least 600 civilians had been killed in U.S. drone attacks in Pakistan since 2006. A Pakistani terrorism expert had arrived at a similar figure, they said. Among the examples they cited were the failed effort to kill the al Qaeda leader known as Abu Khabab in 2006  which claimed at least 25 civilians  and the successful effort two years later. That attack killed two other militants but also three boys who happened to be in the strike zone. Without addressing international law issues, Bergen and Tiedemann joined other critics in questioning the wisdom of the policy or its ultimate value. The drone program, they wrote, “is a tactic, not a strategy.” Whatever precautions the United States may take, civilian casualties are inevitable in a war conducted from the air and guided from afar. And the collateral damage from two-foot-long bombs falling amidst civilian populations includes a hardening of the anti-American sentiment already strong in Pakistan. In his speech to the international law group, Koh said that his role is to provide sound judgment as well as legal advice, to speak up when a policy is “lawful but awful.” Many legal experts concur that the U.S. drone war complies with international law even as counterterrorism experts are questioning its value. The administration owes Congress and the public a more detailed accounting to show that the program satisfies both criteria.

Monday, March 22, 2010

With the historic health care reform bill not yet signed into law, opponents are already preparing to take the predictable next step to challenge the measure in court as unconstitutional. The litigation promised by attorneys general in 11 states will give opponents a new forum to register their disagreements, but the legal arguments appear to be clearly contradicted by Supreme Court precedents supporting Congress’s regulatory and taxing powers over interstate commerce. The attorneys general, all of them Republicans, also plan to argue that the measure violates states’ sovereignty. Virginia has already passed and other states are considering legislation aimed at blocking the federal law from taking effect within their borders. On that score, the Constitution itself could hardly be clearer. Under the Supremacy Clause (Art. VI), the Constitution and “the laws of the United States” are “the supreme law of the land,” any state laws to the contrary notwithstanding. The opponents correctly note that the bill’s central provision  a tax-based mandate for everyone to purchase health insurance  is unprecedented, but the lack of a precedent is not constitutionally fatal. Before passage of the federal wage and hour law in 1938, it was also unprecedented for Congress to require all employers to pay a minimum wage and overtime to all employees. But the Supreme Court upheld the law in a unanimous decision three years later (United States v. Darby Lumber Co., 1941), and hardly anyone doubts its constitutionality today. The legal experts defending the constitutionality of a health insurance mandate start with a famous Supreme Court decision two years later that rejected a farmer’s attack on a federal agriculture quota limiting the amount of wheat he grew for his own consumption. In Wickard v. Filburn (1943), the court unanimously said that Congress’s power over interstate commerce extends even that far. The farmer’s “trivial” contribution to the demand for wheat was “not enough to remove him from the scope of federal regulation,” Justice Robert H. Jackson explained, “where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.” Opponents of the health insurance mandate criticize the decision. Andrew Napolitano, legal analyst for Fox News and a former state court judge in New Jersey, calls the ruling “notoriously tendentious.” In an op-ed in the Wall Street Journal in September, Napolitano argued in any event that health services is neither commerce nor interstate. “In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines,” Napolitano wrote. In addition, “one goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one’s health.” Anyone who has recently been billed for medical or hospital services will understand that commercial activity is taking place. As for Napolitano’s narrow definition of interstate commerce, the Supreme Court followed that approach in the early 20th century, but has taken a broader view almost without exception since the New Deal. True, under Chief Justice William H. Rehnquist, the Supreme Court twice in the 1990s invoked a narrower definition of interstate commerce to strike down federal laws that banned possession of guns near schools (United States v. Lopez, 1995) and that created a federal cause of action for victims of gender-motivated violence (United States v. Morrison, 2000). Five years later, however, the court returned to a broader view in ruling that federal drug law takes precedence over state laws allowing medical use of marijuana. As Justice John Paul Stevens explained in Gonzales v. Raich (2005), home-grown marijuana, like home-grown wheat, could have a “substantial effect on supply and demand in the national market for that commodity.” Opponents of the health insurance mandate also argue that the measure will effectively require some people to subsidize insurance for others. Supporters counter that such subsidies are the very nature of an insurance pool. Regardless, the Supreme Court in Wickard v. Filburn answers the argument. Any regulation, Justice Jackson explained, imposes a cost on the regulated in order to benefit the broader public good. Those conflicts, he said, “are wisely left under our system to resolution by the Congress,” not the courts. The opponents look to the Tenth Amendment for their state sovereignty arguments, with its language reserving to the states all powers not delegated to the national government. The Supreme Court once famously described the amendment as a mere “truism.” In any event, if the law is a valid exercise of Congress’s commerce power, the Tenth Amendment is satisfied. And Congress’s power to enact the measure is even clearer if viewed as a tax. The law actually operates by imposing an excise tax on anyone who does not have health insurance. And Congress’s taxing power is almost unbounded  even if the purpose is not to raise revenue, but to regulate conduct. Some constitutional law experts see some validity in the opponents’ arguments  including Randy Barnett, a libertarian professor at Georgetown University Law Center and the losing lawyer in the medical marijuana case. Most other legal experts see the opponents’ attack as implausible, bordering on the frivolous. “I don’t think the vote would be close,” Timothy Jost, a health law expert at Washington & Lee University (no relation), told the Washington Times last fall.

Monday, March 15, 2010

Thurgood Marshall is best known as a liberal hero for fashioning the litigation strategy that led to the Supreme Court’s landmark decision in Brown v. Board of Education (1954) outlawing racial segregation in public schools. Interestingly, Marshall’s best known argument a decade later as U.S. solicitor general is one that would have endeared him to conservatives: his failed effort in 1966 to dissuade the justices from adopting the Miranda guidelines on police interrogation of criminal suspects. Marshall’s personal approval of Miranda can be seen in his votes during 24 years on the Supreme Court to reaffirm and in some instances extend the decision. As a government lawyer, however, Marshall had an ethical obligation to argue the government’s position, not his own. Over the past weeks, Liz Cheney has drawn attention to herself and her organization Keep America Safe for a drive-by video attack on current Justice Department officials who, as private attorneys, represented or took positions in support of the rights of Guantanamo detainees. The attack has been vehemently criticized by lawyers across the ideological spectrum, including prominent conservatives from past Republican administrations, for demonizing attorneys for upholding the profession’s ethical obligation to represent the otherwise unrepresented. But the video also fundamentally disrespects the role of the government lawyer. By depicting the Justice Department officials as “the al Qaeda 7,” the video suggests that they will subvert government policies  and debase their oaths of office  by using their influence to tilt the government’s legal position in favor of an avowed terrorist organization at war with the United States. Liz Cheney and her father, former vice president Dick Cheney, have some familiarity with government lawyers who substitute their own views of the law for what the law actually says. John Yoo is one, according to the Justice Department’s inspector general, which found that the former deputy assistant attorney general had allowed his “extreme ideology” to influence his legal opinion supporting the president’s supposed power to authorize torture. But Cheney’s counsel, David Addington, was an ideological soulmate who advocated within White House circles extreme views of presidential power. Among conservative Republicans, however, are also some government lawyers who fully appreciated the distinction between their personal views and their role as advocate for the government’s. Two that come to mind are two of the Bush administration’s solicitors general: Theodore Olson and Paul Clement. As solicitor general in 2003, Olson took on the assignment of defending the constitutionality of the McCain-Feingold Act, a campaign finance reform signed into law by Bush with some reluctance and opposed by many leading Republicans and conservatives. Olson prevailed in a 5-4 Supreme Court decision that upheld all but two minor parts of the law. Six years later, Olson was back before the court, as a private attorney representing the conservative group Citizens United in seeking to strike down a major part of the law. Thanks to a change in the court’s membership  and perhaps to his advocacy skills  Olson prevailed again in a 5-4 decision that, one suspects, more accurately reflects Olson’s personal views. As solicitor general in 2006, Clement appeared before the Supreme Court in the District of Columbia gun rights case. Representing the United States, Clement argued in favor of an individual Second Amendment right but also in favor of a relaxed “rational basis” standard for judging gun regulations against that right. Three years later, as a private lawyer, Clement appeared before the court in March on behalf of the National Rifle Association, urging the court to enforce the newly recognized Second Amendment right against state and local governments. This time, Clement spent no time extolling the need for government to enact and enforce reasonable gun regulations. Among the current Justice Department lawyers, none played a more prominent role in Guantanamo-related litigation than Neal Katyal. As a professor at Georgetown University Law Center, Katyal represented Salim Ahmed Hamdan, the former driver for Osama bin Laden. Along with Hamdan’s military lawyer, Katyal waged a relentless legal fight that culminated in the Supreme Court’s 2006 decision striking down the military commission system as then constituted. Today, as deputy solicitor general, Katyal has recused himself from all Guantanamo-related matters. But he did appear before the D.C. Circuit Court of Appeals in January to argue the government’s position against recognizing habeas corpus rights for prisoners held at the U.S. Air Force base at Bagram, Afghanistan. In his argument, Katyal distinguished Bagram from Guantanamo by stressing its proximity to an active battlefield and the lesser degree of U.S. control. When Katyal spoke at a Federalist Society-sponsored program in January, someone in the audience asked him to explain the seeming contradiction with his role in using habeas corpus in Hamdan’s case at Guantanamo. Katyal reiterated the distinctions and said he was quite comfortable personally with both positions. But he added that as a government lawyer, his personal view was in fact irrelevant: that he was obliged to represent the government’s position as best he could. Nothing in Liz Cheney’s video suggests that any of the Justice Department lawyers have done anything else since assuming government office. Nothing suggests they performed other than honorably and ethically in their previous work in terrorism-related cases. If Liz Cheney  a lawyer herself  has any evidence to the contrary, she should bring it forward. If not, an honorable woman would retract and apologize for the unwarranted slur.

Monday, March 8, 2010

Whatever happens to the Khalid Sheikh Mohammed trial or the Guantanamo prison camp, Attorney General Eric Holder is clearly a big loser on both issues inside the Beltway. Holder is being beaten up for his actions on the related fronts not only by Republicans and conservative but also by no less a figure than White House chief of staff Rahm Emanuel. Emanuel has done nothing to contradict or even soften the widespread reports that he opposed Holder’s decision in November to try KSM and four other alleged co-conspirators in a federal court in New York City instead of in a military tribunal in Guantanamo. Similarly, Emanuel reportedly opposed from the outset President Obama’s pledge to close the Guantanamo prison camp  a thankless job that Obama assigned to Holder. At this writing, the decision on the KSM trial is still pending, but Holder has already been forced into a partial retreat. He told The Washington Post in February that the selection of a forum was less important than making sure that the trial was conducted “as transparently as possible and with adherence to all the rules.” As for Guantanamo, out of the 250-plus prisoners at Guantanamo on the day of Obama’s inauguration, 188 are still there. On Capitol Hill, opposition from Republicans and ambivalence at best from Democrats threatens to block any funding for moving prisoners to a facility on the U.S. mainland. The KSM trial issue combined with the Justice Department’s decision to treat the Christmas Day bomber, Umar Farouk Abdulmutallab, as a criminal suspect to bring forth a torrent of criticism for Holder. Sen. Lamar Alexander, a moderate Republican from Tennessee, cited both issues in a Jan. 31 appearance on Fox News Sunday, where he said that Holder “perhaps” should resign. Despite all that flak, Holder appears secure in his job. Indeed, Alexander declined to repeat his call for Holder to resign when invited to write an op-ed for my forthcoming CQ Researcher report, “Prosecuting Terrorists” (March 12). Other GOP congressional offices also passed. Still, Holder’s influence  his ability to call the shots on the administration’s legal policies  certainly appears weakened. Liberal supporters nevertheless give Holder high marks for redirecting the Justice Department in the aftermath of what they see as the disastrous eight years for the department under President George W. Bush. “The first thing that comes to mind is Hercules cleaning the Augean stables,” says Caroline Frederickson, executive director of the American Constitution Society (ACS). “It was a massive undertaking to remedy the problems of the Bush administration.” From a liberal perspective, Holder, the first African American to serve as attorney general, gets credit in particular for redirecting the department’s civil rights division, which was overtly politicized under Bush. Frederickson notes that ACS was one of the organizations whose members were blacklisted for Justice Department hiring under Bush. She is confident that hiring is now done professionally, with no comparable blacklist for the Federalist Society, the conservative group that played an influential role in legal issues under Bush. Holder has identified himself with liberal stances on other issues. In March, he issued revised Freedom of Information Act guidelines directing agencies to be more favorable toward requests for documents under the landmark federal law. In October he sounded social services-type themes in teaming with Education Secretary Arne Duncan on an initiative to reduce youth violence. As administrator, Holder’s record is mixed. Deputy attorney general David Ogden resigned after less than a year; the two did not work well together. The all-important Office of Legal Counsel has only an acting director; Senate Republicans are blocking a confirmation vote for Dawn Johnsen, a liberal law professor. The pace of judicial nominations is slow. Holder’s administrative abilities were put to the test in taking over the Guantanamo files from the Bush Defense Department. Justice Department lawyers reportedly found case files on the prisoners to be incomplete, disorganized or worse. It is no wonder that federal judges in Washington have ruled in favor of most of the detainees’ habeas corpus challenges to come to decision so far. Meanwhile, the Justice Department has the uphill job of trying to find countries to agree to take some of the detainees off our hands. Progress on that front comes one, two or three prisoners at a time. Along with Guantanamo, Holder bought himself trouble in August by opening the door to possible prosecution of CIA agents for interrogation of some terrorism suspects during the Bush years. Holder said the department would examine whether some agents went beyond the controversial “enhanced interrogation techniques” authorized by the Bush Justice Department. Conservative critics see nothing other than prosecuting CIA agents for doing their jobs and keeping the country safe. Some of Obama’s advisers are reportedly distressed with Holder’s stances. “The White House doesn’t trust his judgment,” an unnamed lawyer “close to the administration” told New Yorker staff writer Jane Mayer. To Frederickson, however, Holder’s job is to be “lawyer for the nation,” not just the president. “People respect him for his efforts,” she says. Holder himself says he is comfortable with his role  and his relationship with Obama. “We are on the same page,” he told Mayer. ““He recognizes that being attorney general at this time is not the easiest job in the world.”

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About this Blogger

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.

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